U.S. v. Illinois Bell Tel. Co.

• Decision Date: 23 February 1976
• Docket Number: No. 75--1909,75--1909
• Citation: 531 F.2d 809
• Parties: UNITED STATES of America, Applicant-Appellee, v. ILLINOIS BELL TELEPHONE COMPANY, Movant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 809

531 F.2d 809

UNITED STATES of America, Applicant-Appellee, v. ILLINOIS BELL TELEPHONE COMPANY, Movant-Appellant.

No. 75--1909.

United States Court of Appeals Seventh Circuit.

Argued Oct. 30, 1975.

Decided Feb. 23, 1976.

L. Bow Pritchett, Chicago, Ill., for movant-appellant.

Samuel K. Skinner, U.S. Atty., James P. Walsh, Asst. U.S. Atty., Chicago, Ill., for applicant-appellee.

Before FAIRCHILD, Chief Judge, BAUER, Circuit Judge, and CHRISTENSEN, Senior District Judge. ^*

CHRISTENSEN, Senior District Judge.

In a suppressed, ex parte proceeding in the United States District Court for the Northern District of Illinois, Eastern Division, the Department of Justice applied and was granted on September 18, 1975, an order which authorized the Bureau of Alcohol, Tobacco, and Firearms, Department of Treasury, to install a pen register device ¹ on a particular telephone number. The order also affirmatively required appellant Illinois Bell Telephone Company (telephone company) to provide 'facilities . . . information . . . and technical assistance necessary to accomplish the interception unobtrusively . . .', compensable at the prevailing rates for the furnishing of such facilities or technical assistance.

The district court issued the order in question based upon a finding of probable cause to believe that evidence of the commission of two misdemeanor violations of the Internal Revenue Code would be obtained through the use of a pen register attached to the particular telephone. A Special Agent of the Department of Alcohol, Tobacco and Firearms of the U.S. Treasury Department, signed an affidavit which recited that the particular telephone number was being used in connection with (1) failure to pay a tax imposed on those receiving wagers, 26 U.S.C. § 7262, and (2) failure to register as a person receiving wagers, 26 U.S.C. § 7272. The sufficiency of the affidavit to establish these facts is not questioned on this appeal.

The telephone company moved the district court to vacate the order, contending that it was issued without lawful authority. After considering memoranda from counsel, the district court on September 30, 1975, denied the motion. The telephone company appeals on the ground that while the government's law enforcement officers might lawfully be entitled to use a pen register under the circumstances, the district court had neither inherent nor statutory authority to deputize or compel the telephone company to assist them in so doing. We conclude that the district court had inherent authority ² to order the telephone company's assistance in this case. Accordingly, we affirm the order of the district court.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510--2520, prohibits all wiretapping and electronic surveillance by persons other than duly authorized law enforcement officials who are engaged in the investigation of major crimes specified in the Act. Even duly authorized law enforcement officials, as to the specified crimes, have to comply with the requisites of the Act and obtain a court order. The parties, however, agree that this case does not fall within the purview of Title III, apparently because the offenses being investigated by the government are not among those enumerated in Title III, and because a pen register does not hear sound and therefore does not accomplish an 'interception' of wire communications as that term is defined by 18 U.S.C. § 2510(4). ³

A clear exposition of the view that pen registers are not controlled by the provisions of Title III is contained in the legislative history of the Act:

The proposed legislation is not designed to prevent the tracing of phone calls. The use of a 'pen register', for example would be permissible. But see United States v. Dote, 371 F.2d 176 (7th Cir. 1966). The proposed legislation is intended to protect the privacy of the communication itself and not the means of communication. S.Rep. No. 1097, 90th Cong., 2d Sess., 90 (1968), U.S.Code Cong. & Admin.News 1968, p. 2112.

This court and others which have considered the use of a pen register device to monitor and record the numbers dialed from a particular number have concluded that its use is not governed by Title III. United States v. Giordano, 416 U.S. 505, 553--54, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) (Powell, J., concurring in part and dissenting in part); United States v. Clegg, 509 F.2d 605, 610 (5th Cir. 1975); United States v. Falcone, 505 F.2d 478, 482 (3d Cir. 1974); United States v. Brick, 502 F.2d 219, 223 (8th Cir. 1974); United States v. Finn, 502 F.2d 938, 942 (7th Cir. 1974); Korman v. United States, 486 F.2d 926, 931 (7th Cir. 1973); United States v. King, 335 F.Supp. 523 (S.D.Cal.1971); United States v. Vega, 52 F.R.D. 503 (E.D.N.Y.1971). ⁴ It has been held by one court that pen registers are within the reach of the Act when used in connection with a court-ordered Title III wiretap. United States v. Lanza, 341 F.Supp. 405, 422 (M.D.Fla.1972). ⁵ The present case, however, involved only the use of a pen register; no other wiretap or surveillance was contemplated.

With the facts and circumstances of this case falling outside the purview of Title III, it will not be necessary to determine whether the district court properly complied with the Title III requisites. The court's jurisdiction and authority necessarily must stem from other sources.

The district court's jurisdiction to enter an order authorizing government law enforcement agents to employ a pen register has not been disputed by the telephone company. The district court entered that part of its order based upon an affidavit signed by a special government agent which established probable cause for believing that evidence of the commission of violations of the Internal Revenue Code would be obtained by using a pen register. Such an accommodation for issuing an order for the use of a pen register was cited with apparent approval by Mr. Justice Powell in a concurring and dissenting opinion, joined by Chief Justice Burger, Mr. Justice Blackmun, and Mr. Justice Rehnquist, in United States v. Giordano, 416 U.S. 505, 553--54, 94 S.Ct. 1820, 1845, 40 L.Ed.2d 341, 374 (1974):

Because a pen register device is not subject to the provisions of Title III, the permissibility of its use by law enforcement authorities depends entirely on compliance with the constitutional requirements of the Fourth Amendment. In this case the Government secured a court order, the equivalent for this purpose of a search warrant, for each of the two extensions of its authorization to use a pen register. (Emphasis added) ⁶

There seems nothing essentially inconsistent with this order-application accommodation in the majority opinion which rejected the evidence obtained from the use of the pen register, not because of a lack of judicial authority to issue the form of order used, but the evidence was '. . . derived from . . . (an) invalid wire interception . . ..' 416 U.S. at 511 n. 2 and 533--34 n. 19, 94 S.Ct. at 1835, 40 L.Ed.2d 363. Apparently, Fed.R.Cr.P. 41, which deals with the traditional concept of search and seizure and which lodges jurisdiction and authority in the district courts to issue search warrants to search and seize 'tangible' objects was not thought by the Supreme Court to be a limitation upon the power of the district court to authorize, outside Title III, reasonable use of investigative techniques rendered possible by modern technology as to 'nontangibles'. The commonsense approach used by the district court in issuing an order based on probable cause and following a procedure designed to comply with Fourth Amendment considerations in authorizing the use by the government of the pen register was a valid exercise of authority.

That much the telephone company seems not to question. It contends, however, that the district court possessed no authority to order the telephone company to furnish assistance. This position seems triggered by the fear of resulting civil liability when and if the subscriber learns of the installation of the pen register and the telephone company's assistive role in its installation, and possible criminal liability under the Federal Communications Act, 47 U.S.C. §§ 501 and 605.

In support of its argument, the telephone company cites Application of United States, 427 F.2d 639 (9th Cir. 1970) (hereinafter Application). In that case the government applied for a wiretap authorization pursuant to 18 U.S.C. §§ 2510--20 and asked the district court to order the local telephone company to provide facilities, services and technical assistance. The district court held the Act did not authorize this and refused to order telephone company assistance. The government appealed, and the court of appeals, sustaining the district court, rejected the government's argument that the district court had inherent authority to compel the cooperation of the company. ⁷

Reacting directly to the decision of the Court of Appeals for the Ninth Circuit in Application of United States, supra, Congress immediately adopted amendments to the Act to expressly authorize a district court to require assistance from communications common carriers. 18 U.S.C. § 2518(4). The Act was also amended to remove such cooperation from the ambit of the criminal sanctions provisions, 18 U.S.C. § 2511(1)(a), and the Act was further amended to broaden the 'good faith reliance on a court order' defense to both criminal and civil liability. 18 U.S.C. § 2520.

The telephone company argues that Congress' reaction to Application was acceptance of the views expressed therein. We view Congress' action more in the nature of an overruling of that opinion. If the omission in Title III to any reference to a judicial power to compel communication carriers to assist law enforcement officers had been 'purposeful', as articulated in Application, it is highly unlikely that Congress would have immediately amended the Act to...